There is no greater tyranny than which is perpetrated under the shield of the law and in the name of justice. Montesquieu.
There are cases in history where the State has gone insane and waged war upon its own people. Though such cases are far and apart examples do exist. They stand testimony to the reality of how such an endeavour usually ends. A century ago, Chief Justice Charles Evans Hughes, delivered one of the most influential lectures on the Constitution related to war. In it, he uttered the most famous axiom that ‘the power to wage war is the power to wage war successfully’. Though a very loaded statement and one that carries so much meaning, the one that really matters most is the consequences of losing that war. When the State chooses to initiate war against its own people it is termed as tyranny.
It is commonly understood that all tyrannies rule through fraud and force, but once the fraud is exposed they must rely exclusively on force – physical confrontation/war. However, what is more interesting is that having chosen the path to conflict, a war on one’s own people, through tyranny and authoritarian rule, what would the landscape look like after its all over. One can turn back the pages of time and examine the storming of the Bastille in 1789, or the Greek Revolution of 1821 and the Russian Revolution of 1917, and The State against East Pakistan – civil war of 1971 – that all ended in massacre and bloodshed. There were reprisals, executions and incarcerations of those who were responsible for perpetuating tyranny, oppression and totalitarianism; these are just a few examples; the fact really being that where ever there was such a case of the State waging war on its own people, those who chose that path, found themselves in a very difficult situation at the conclusion of such a conflict.
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We, the people of Pakistan, have pretensions towards Statehood, like any normal country – we aspire to be recognised as a people defined by a sovereign State. The State – a geographical entity, comprising people with a common bond, located with natural contiguity in a given land, with defined limits/with universally accepted boundaries/borders. This common bond is usually ethical, ideological or political or even all three. A State is established to allow such people, who have a common cause to be able to express that cause freely, without coercion or influence and live their lives as they wish to. In our case the State is Pakistan and its geographical limits are defined in the constitution in Article 1.
The said article also defines the form of governance and in our case it was stipulated as a ‘Republic’, thereby acknowledging the sovereignty of the people who are the true rulers and the only rulers of the State. It is the sovereign that identify the nature and character of the State by specifying its values, principles and doctrines. The common cause amongst the people is obviously Islam but politically it was strongly voiced, in no uncertain terms and on many occasions by the Quaid e Azam, Muhammed Ali Jinnah himself, when he gave the famous motto to the Nation, Unity, Faith and Discipline – that regardless of what faith one belonged to us, the people, were one homogenous nation, that we, the people, must have faith in ourselves and be self-reliant, though the country had only just been established, and that we, the people, must observe the rule of law which was equal to all and indifferent to none.
The philosophy of the State was further established in the first constituent speech of the country, when the Quaid said, “You are free; you are free to go your temples. You are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion, caste or creed – that has nothing to do with the business of the State”. This was what the people of Pakistan were and wanted to be – to be free. Free of political authoritarianism, religious belligerence and ideological intolerance.
This then led to electing the representatives of the people i.e. the Government.
The government was an elected body, selected to represent the sovereign, i.e. the people of the State. So as to ensure that the Government never outgrew its mandate – overreaching the limited authority vested within it, there was a codified set of laws given to the Government, enshrined in the Constitution. The Constitution is the aggregate of fundamental principles that constitute the legal basis of a polity, organisation or any other type of entity and determines how that entity must be governed. When that entity is a country, then the Constitution is a system of laws which formally states the people’s rights. In other words, it is a document that protects the people from its own government.
The Constitution defines the limits of the authority that could be enjoyed by the Government and the authority vested within the government is not infinite or open ended. If the government is a group of people selected over other similar groups of people, there had to be some sort of benchmarking that had to be examined by the people enabling them to choose. The people have the right to select their preferred promises proffered to them, amongst many other such promises by the other competing groups.
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This benchmark is commonly known as a manifesto
Its first and foremost recommendations and suggestions must always relate to how, it intends to promote, expand, protect the ethos of the State as defined. In our case, these defined values were embedded in the first Constituent Assembly and remain on record. Some manifestos of political parties may differ with it, but then the difference must be clearly enunciated and the people allowed the choice to pick an alternative National Thought/Philosophy for the State other than the one already being followed or promoted. These matters have never been considered seriously in this country and political parties are selected or elected on the basis of the baradari system, feudal over-watch, administrative coercion or rigging.
The State has thus become benign and reduced to a tract of land without any political or ideological ownership or identity – with votes being caste on the basis of bribe, coercion or fear. The Government has become a farce where the people that comprise the government are the ones who are there by hook or crook and whose sole objective is to rule Pakistan at any cost as opposed to governing it. The people of the State have become irrelevant having abdicated their own authority to these charlatans, swindlers and knaves.
The Constitution now has gradually been adjusted to bring forth a set of laws designed to protect thieves and the people in power; it has been ground into the dust and relegated to fanciful rhetoric, that is not worth the paper it’s written on. The little that is left of the Constitution is not even upheld by those empowered to do so while its violated blatantly by those who are supposed to implement it or be governed by it. The sole beneficiaries of the constitution are the politicians in government, who were in fact, supposed to be contained, limited, regulated and directed by it.
So now with the recent display of total indifference to the people of this country, lacking any regard for the constitution and their continual preference as they have been pained to demonstrate on the streets and at public gatherings, the ECP, on its own, arbitrarily, has announced a date in October for fresh elections. That the dates were already given and the elections had to be held within 90 days after the dissolution of the assemblies, was disregarded. One province refused to give a date and the other threw the responsibility from one office to another. Without any further or alternative recourse to such perfidy, the President announced the dates for the Punjab Assembly as the 30th of April and awaited dates to be given by KP.
The Supreme Court upheld the decision and ordered a date to be given by the KP Government as well, so as to hold elections within 90 days of the dissolution of the assembly. The ECP, reference their own stated position, had clearly indicated that it was not empowered to give a date for the elections and that their only constitutional responsibility was to hold elections in a free and fair manner on the dates announced by the government. Yet the ECP chose to not only contradict their own commitment but now stand liable to be held in contempt of the Supreme Court by disregarding its ruling and also a fit case to be tried under article 6 of the Constitution for violating it.
The overall argument, in the meantime, has since been side-lined by a meaningless debate on the majority vote of the bench instead of discussing the constitutional powers and the validity of the ECP related to giving a date for such elections. Perfidy at its finest by the State and its minions. That holding of the elections, which was never contested by any judge, is no longer in contention but that suo moto(Suasponte) has suddenly become the focus i.e. can the Chief Justice take notice on a matter of national importance ‘on its own motion?’ That this enthusiasm by some of the honourable judges, to curtail the powers of the Chief Justice, were somehow, not fired up when article 69 of the Constitution was violated by the judiciary on 11 Apr 2022 on a similar suo moto notice!
The offended judges have found nothing too powerful enough to excite their sense of propriety or honour in other such cases such as the murder attempt upon the ex-Prime Minister, the cowardly assassination of Arshad Sharif or the brutal slaying of Zille Shah. That the country, the people and the environment clearly define the moment and the moment is begging for free and fair elections, that anyone, even if blind, deaf or mute, cannot consciously ignore. Yet, the National Assembly, in its collective lack of wisdom, huddled together and went into a meaningless tirade in an effort to discredit the PTI and defame its leadership instead of addressing the crisis.
They went a step ahead and have passed a bill to curtail the powers of the Chief Justice; despite the fact that the Law very clearly stipulates that the administrative culture, procedures, rules and regulations by which the judiciary will function will be determined by the judiciary itself. Having studied the ‘Judicial System of Pakistan’, a 37-page document by F Hussain, some major points that need to be considered are as follows: The Constitution provides for the “separation of the Judiciary and the Executive” and the “independence of the judiciary”. It entrusts the superior courts with an obligation to, “preserve, protect and defend’ the Constitution.
By passing a bill today, to curtail the powers of the Chief Justice, the Constitution in fact has been once again been violated since it is supposed to ensure the freedom, independence and impartiality of the superior judges. Having experienced the negative effects of a constitutional crisis there is now an added problem of a judicial crisis. Thus the battle goes on with the last firewall between a hostile government and the PTI, the judiciary, now being blatantly threatened. If the Judiciary succumbs and collapses, then anarchy will be the only recourse left to the people of this country.
The manner in which the Constitution is being interpreted (used), indicates flexibility in the Constitution and that it is voluble. If the Constitution is not sacrosanct and circumstances and the environment are over-riding factors that determine which part of the Constitution is applicable and which is not, then we are back to the ‘Doctrine of Necessity’. All that any future governments have to do, is to announce a National Security issue, a terrorist threat, a failing economy or a natural disaster as good enough reasons for not holding elections. In other words, we are likely to have a permanent government in place supported by a Constitution that is protecting the predator and not the victim it was designed to protect.
This is heading for a direct conflict between the people of the State and the Government – if reason is not good enough, if rational not a factor, logic given no place, legality or law not relevant – then it shall be people on the streets, protests in every town and a beleaguered government. Will the government now perpetuate war against its own people, as it justifies its own indefensible position and forces people to submit to an illegal constitutional imposition?
So far, the Supreme Court has shown unusual indifference towards the ECP’s announcement, where the expectations of the people were that it ought to have immediately reacted to such a blatant provocation. The obvious contempt in which the ECP has held the ruling of the Supreme Court, cannot have gone unnoticed unless the Supreme Court is no longer as autonomous as it was empowered by the Constitution. This case has very far reaching effects and the ECP must not be allowed to get away with it, leaving in its wake a legacy of deceit, treachery and treason as precedence. The ECP has no logical rational in committing to a date in October based on the reasoning that the environment was not right for elections as per the given schedule in keeping with the Constitution. They have no justification to assume that the environment would be alright in October but not in April.
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The elections debacle
That the October dates coincide with the expiry of this National Assembly cannot be a mere coincidence. That the unrealistic hope that the current government may have sufficient time to mend its irreparable reputation, seems to be very far-fetched and a ludicrous expectation – given that this government will always be recognised for being the most hated government that this country has ever had. That, PTI may lose some of its shine and not be as aggressively popular as it is now, may also be a wishful thought where more time may be requested for but would not change ground realities.
That time was needed to disqualify the PTI leadership or eliminate it, is probably the only possible motivation to stretch the dates for the elections to as far forward as politically possible. But then, if the situation is not right now and if the government in its majesty decides in October, that the situation is not right then as well, where will the schedule for the elections be taken to then? This government must keep in mind, that the people of this country may be willing to forgive conditionally but they will never forget the deceit that this coalition has subjected the populace to.
The Supreme Court by doing the right thing, setting aside the ECP ruling, disqualifying the Commissioner for his omissions and commissions, we may, possibly, find ourselves travelling in the right direction. Will the Supreme Court go down in history as the saviours of the Constitution and protectors of the people of Pakistan? Can this crisis be resolved through a legal option or is there more to it? The last hope now – the bastion of national integrity, the custodian of the people’s laws and the constitution, is only the Supreme Court – will it take on this challenge and steer the country away from rebellion or will it also succumb to the trials and tribulations of common, petty coercion, black-mail and intimidation?
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However, if the Supreme Court cannot find it within itself to right the wrong that is being perpetuated in this country, then it shall fall automatically upon the shoulders of the People of Pakistan. They will be obliged to rescue the State from a dubious coalition, holding this nation hostage, by infiltrating into the seat of government through deceit and fraud. Looking at this coterie of crooks disguised as a government but which is nothing more than a kabza group, one is reminded of Oliver Cromwell’s Speech of the 20th April 1653, where he stated, “You have sat too long for any good you have been doing lately…. In the name of God, go!”.Such extra-constitutional measures, as rebellion or anarchy, never make for a good recommendation but when the Constitution is no longer in contention, is no longer a sacrosanct document, is not recognised as the only one authority to uphold the law, the country will naturally gravitate towards anarchy, since there will be no law. No authority would be recognised, no office considered to be legally empowered and every administrative instruction, order or directive considered to be null-and-void.
There could be chaos on the streets as everyone will interpret the law as is convenient to them, regardless of what cost it is to the others.People in chair, in every office will resort to rhetoric, giving their version based on lies, deceit and hypocrisy. We have just recently been subjected to the most incredible statement by no less than the Prime Minister himself, in his forceful expose, when he questioned with total commitment, as to why was the opposition complaining about the selection of the new Chief of the Army Staff, when he, in fact, was the first Chief that was selected by merit? He thus confirmed, in one breath, that all the Chiefs picked by PMLn before this, Generals Jehangir Karamat, Pervaiz Musharaf, Raheel Sharif and Bajwa were not selected through merit but were selected for other reasons – best known to the honourable Prime Minister himself alone!!! Yet what is really questionable is whether, the Prime Minister is even familiar with the term merit and its implications, let alone defining merit within a military system.
He has been very generous in his use of the term, merit, especially when he is totally unfamiliar with it nor has he ever been burdened with such a nuisance in the past. How would he know how to identify merit amongst senior military officers – he should tell us of at least one trait that he knows, if he could! These are the arguments that we will hear, this is the wisdom that we will be subjected to by an incompetent government that is artificially in power and is least concerned with the matters of the State – for them, we the people are only a nuisance to be imprisoned, locked away, assassinated or tortured. What does this Government think will happen when the shoe is on the other foot?
It is these people who will now resort to the misuse of state machinery and attempt at creating a favourable environment for themselves to rule this hapless nation indefinitely, ensuring that the shoe remains on the foot that favours them. They will render every institution dysfunctional, politicise the others, and influence the remaining. They shall accrue political mileage through blackmail, eavesdropping and videos that they have compiled on all those who are not loyal to their cause. The Supreme Court needs to state clearly whether collecting private information without legal permission is an infringement of an individual’s privacy or not and is in fact, an illegal activity.
If this information lacks legal cover, then why does one discuss these leakages and presents them as kosher-evidence? Why are these peeping toms, eavesdroppers and black-mailers going about unpunished? If this is what the environment is, total disrespect for life, social norms and in blatant violation of every modicum of human dignity, it is will obviously lead to anarchy and unrest. It is fast becoming a case of self-defence against the powers that be – in the context of protecting home and hearth, property, families and children. It will lead to conflict on the street, armed response by some, and arson by others. Yet it’s the people’s principled and national mandate to demand what is justifiably their right – to be governed through their own elected representatives. This can only come about through free and fair elections.
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To avoid further division and polarisation, people at the helm of affairs must take the right steps now to correct the course we are heading on. This group of people, sitting in government have failed in every walk of life, every field, and every department – economy, governance, administrative functions and foreign policy. They cannot deliver now or in the future and are so obviously incompetent lacking in capacity or capability that it is visible to all and sundry; one cannot just forcibly surrender the State and its people to such an aberration, to do with us, as they please. The right steps must be taken in sincerity without being swayed by the false consequences of taking those steps, so forcefully narrated by the various sleuths we have and the agencies we suffer.
These agencies are always holier than the pope’ and it is, after all, because of them that the country is where we are. It is time to shelve them and bid them farewell in the affairs of this country; it ought to be kept in mind, that the problem can never be the solution. Allow the judiciary the free hand that they need to interpret the Constitution correctly. Let them hold those in contempt of court and whoever deserves to be so charged and put such people in their place. Hold elections – hold them on time and let them be free and fair. It’s the only answer to Pakistan’s instability and uncertainty today.
The worst evil which mankind has ever had to endure was inflicted by bad governance Ludwig Von Mises.
Writer, Gen. Tariq Khan, retired as head of Pakistan’s Central Command. He previously led Pakistan’s strike Corps at Mangla and has led Frontier Corps to victory against TTP. He had participated in the First Gulf War of 1991 and contributed towards the international effort in the War on Terrorism as Pakistan’s Senior representative at CENTCOM, Tampa, Florida from 2004 to 2005. Gen. Tariq has written and lectured extensively on the issues related to Afghanistan, United States and the Taliban.